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Al Skeini Case Case No: CO/2242/2004 Neutral Citation Number: [2004] EWHC 2911 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT Royal Courts of Justice Strand, London, WC2A 2LL Tuesday, 14 December 2004 Before : THE RIGHT HONOURABLE LORD JUSTICE RIX and THE HONOURABLE MR JUSTICE FORBES - - - - - - - - - - - - - - - - - - - - - Between : THE QUEEN - on the Application of - MAZIN Claimants JUMAA GATTEH AL SKEINI and others - and - THE SECRETARY OF STATE FOR DEFENCE Defendant -and- The Redress Trust Intervener - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Rabinder Singh QC, Michael Fordham, Shaheed Fatima and Professor Christine Chinkin (instructed by Public Interest Lawyers) for the Claimants Professor Christopher Greenwood QC, Philip Sales and Cecilia Ivimy (instructed by The Treasury Solicitor) for the Defendant Edward Fitzgerald QC, Mark Henderson and Joseph Middleton (instructed by Bhatt Murphy) for the Intervener by way of written submissions Hearing dates: 28th, 29th and 30th July and 30 November 2004 - - - - - - - - - - - - - - - - - - - - - Judgment Summary (this note forms no part of the judgment) 1. In this judgment of the court, the Divisional Court considers the claims of six claimants, relatives respectively of Iraqi citizens who have died in provinces of Iraq where and at a time when the United Kingdom was recognised as an occupying power (viz between 1 May 2003 and 28 June 2004). The first five claimants’ relatives were shot in separate armed incidents involving British troops. The sixth claimant’s son, Mr Baha Mousa, died in a military prison in British custody. The claims are for judicial review, on the basis that article 2 and (in the case of the sixth claimant) also article 3 of the European Convention of Human Rights applies, by reason of the Human Rights Act 1998, to these claims. 2. This judgment is only concerned with two preliminary issues: (1) whether the deaths took place within the jurisdiction of the United Kingdom so as to fall within the scope of (a) the Convention and (b) the Act; and (2) whether, if so, there has been a breach of the requirements under articles 2 and 3 of the Convention regarding an adequate enquiry into those deaths. 3. The judgment first decides, on the basis of a consideration of Strasbourg jurisprudence, that a state party’s jurisdiction within article 1 of the Convention (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”) is essentially territorial; that exceptionally such jurisdiction extends to outposts of the state’s authority abroad such as embassies and consulates; that this exception can apply to a prison operated by a state party in the territory of another state with the consent of that state; but that it does not apply to the total territory of another state which is not itself a party to the Convention, even if that territory is in the effective control of the first state; and that therefore only the case of the sixth complainant, in respect of his son’s death in a British prison in Iraq, was within the United Kingdom’s jurisdiction and thus within the scope of the Convention. It follows that, in the opinion of the court, the claims of the first five claimants must fail. 4. Secondly, the judgment decides, on the basis of a consideration of the Act, that its scope is also essentially territorial but also extends exceptionally, like the Convention, to the case of outposts of the United Kingdom’s authority abroad such as embassies and consulates and in this case the prison in Iraq in which the death of Mr Baha Mousa occurred. It follows that, in the opinion of the court, the sixth claim is capable of falling within the Convention and the Act. 5. Thirdly, the judgment decides, on the basis of a consideration of the facts relating to the death of Mr Baha Mousa and the surrounding circumstances, that the enquiries that have taken place into his death are not adequate in terms of the implied procedural requirements of articles 2 and 3 of the Convention. Index to Al-Skeini Judgment Lord Justice Rix : 1. This is the judgment of the court to which both members have contributed. Introduction 2. The claimants in these proceedings are all relatives of deceased Iraqi civilians (“the deceased”), who have been killed by or in the course of action taken by British soldiers in the period following completion of major combat operations in Iraq and prior to the assumption of authority by the Iraqi Interim Government (i.e. the period 1 May 2003 to 28 June 2004). The defendant is the Secretary of State for Defence (“the Secretary of State”). 3. This judgment is concerned with the determination of two preliminary issues (as to which, see paragraphs 5 and 6 below) arising out of the claimants’ application for judicial review of the Secretary of State’s alleged failure and/or refusal: (i) to conduct independent inquiries into the deaths of the deceased, (ii) to accept liability for those deaths and (iii) to pay just satisfaction. 4. Stated in general terms, the claimants’ application for judicial review concerns the legal responsibilities of the Secretary of State under section 6 of the Human Rights Act 1998 (“the HRA”) in relation to the civilian deaths in question. It is the claimants’ case (as originally pleaded) that the Secretary of State acted in breach of section 6 of the HRA, in particular by his violation of the procedural obligations under article 2 (the right to life) of the European Convention on Human Rights (“the Convention”), in failing and/or refusing to conduct independent inquiries into the deaths of the various deceased. 5. On 11 May 2004, at the hearing of the claimants’ application for permission to apply for judicial review, Collins J granted the claimants permission to apply in relation to the two preliminary issues to be determined in these proceedings and (inter alia) ordered that the remainder of the application for permission be stayed until the determination of those preliminary issues: see paragraph 1 of the order of Collins J, made by consent on 11 May 2004 (“the 11 May Order”). 6. Accordingly, these proceedings are concerned with the determination of the following two preliminary issues, as modified later by agreement between the parties (as to which, see paragraph 8 below): see the terms of paragraph 2 of the 11 May Order: “2. There shall be a hearing to determine the following preliminary issues: 2.1 Whether the European Convention of [Human] Rights and the Human Rights Act 1998 apply to the circumstances of this case; and 2.2 Whether the procedural duty under Article 2 of the European Convention of Human Rights has been violated by the Defendant.” 7. By the same Order, Collins J also granted permission to amend the original claim form as follows: (i) to include Daoud Mousa (the father of Baha Mousa: as to whom, see below) as a new claimant and (ii) to amend the original grounds of the application to include (where relevant) a complaint that the Secretary of State has violated the equivalent procedural obligation under article 3 of the Convention (prohibition of torture), for the same reasons as those alleged in respect of article 2 (see paragraph 5 of the 11 May Order). 8. By agreement between the parties, the claims considered by the court for the purpose of determining the two preliminary issues have been limited to six illustrative cases, namely the claims brought by the first five original claimants, plus the claim brought by Daoud Mousa. As is apparent from the relevant factual circumstances (as to which, see below), Daoud Mousa’s claim differs from those of the first five claimants in that his son’s death occurred as a result of the treatment he received after he had been arrested by and whilst he was in the custody of British soldiers. Accordingly, if the HRA and the Convention do apply to the circumstances of this case, Daoud Mousa’s claim is one that raises issues under both articles 2 and 3. The parties therefore have sensibly agreed that, when determining the second preliminary issue (see paragraph 2.2 of the 11 May Order, quoted in paragraph 6 above), this Court should also consider whether the Secretary of State has violated the procedural obligation under article 3. General background 9. The current military operations by the United Kingdom in Iraq have been and are being conducted under the codename “Operation Telic” and are operations in which British troops form part of a USA-led Coalition (“the Coalition”). Operation Telic was divided into three phases: (i) phase 1, planning and deployment, (ii) phase 2, major combat operations and (iii) phase 3, stabilisation and reconstruction. The deaths with which this case is concerned all occurred during phase 3. 10. Phase 2 of Operation Telic (major combat operations) began on 20 March 2003. By 5 April 2003, the British had captured Basra and by 9 April 2003, US troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. In the post-conflict period that followed, British forces have remained in Iraq, together with other Coalition Forces, operating under a joint command, headed by a US General. 11. It is accepted by the Secretary of State that, between 1 May 2003 and 28 June 2004 (“the relevant period”), in those areas of southern Iraq where British troops exercised sufficient authority, the United Kingdom became an occupying power under the relevant provisions of the Regulations annexed to the 1907 Hague Convention (“the Hague Regulations”) and the 1949 Fourth Geneva Convention (“the Fourth Geneva Convention”).
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